Islands of LA has begun to revisit and deepen its examination of the question of peaceable assembly or the right of assembly, which is raised by the legal context of pedestrian accessible traffic islands in the United States. The right to peaceable assembly – to meet or congregate in publicly owned space to deliberate, express and promote political ideas and viewpoints – is of central importance to our understanding of what is a city and who creates it. It also frames the traffic island as both a quixotic quirk of history and a compelling place of collective and constructive potential. From this vantage point, the pedestrian accessible traffic island becomes a speck of city in a sea of urbanization.

In the United States, understanding this issue requires an examination of the Bill of Rights as well as a larger historical context. The right of the people, peaceably to assemble in order to consult for the common good is a constitutional right protected by the First Amendment of the Bill of Rights to the U.S. Constitution:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. [emphasis added]

Tracing this back, this right was also included in 1774 in the Declaration and Resolves of the First Continental Congress:

The inhabitants of the English colonies in North-America, by the immutable laws of nature, the principals of the English constitution, and the several charters or compacts, have the following rights: They have a right peaceably to assemble, consider their grievances, and petition the king: and that all prosecutions, prohibitory proclamations, and commitments for the same are illegal. (NCD 8 ) [emphasis added]

Going further back in history, the right to peaceable assembly is found in chapter 61 of the Magna Carta, written in 1215. And this history continues all the way back to the Athenians in ancient Greece, where the concept of gathering in public space and the role of a useful citizen centered on discussion and decision making for the sake of the public good. The strength of this conviction is conveyed in this famously classic statement about democracy made by the Athenian leader Pericles as part of a public funeral oration after a battle.

“Our public men have, besides politics, their private affairs to attend to, and our ordinary citizens, though occupied with the pursuits of industry, are still fair judges of public matters; for, unlike any other nation, regarding him who takes no part in these duties not as un-ambitious but as useless [emphasis added], we Athenians are able to judge at all events if we cannot originate, and, instead of looking on discussion as a stumbling-block in the way of action, we think it an indispensable preliminary to any wise action at all.” From the History of the Pelopennesian War (Book 2.34-46) by Thucydides.

This history conveys a longstanding relation among public assembly, political life and the city. It is reflected in the first amendment, which framed the right of assembly in relation to the right to petition the government. Additionally, public assembly was a significant part of 19th century American life in the form of public meetings and spontaneous parades. But the interpretation of the first amendment changed beginning in the end of the 19th century in several ways. (see below for links to The Neglected Right of Assembly by Tabitha Abu El-Haj for an extensive historical and legal analysis published in the 2009 UCLA Law Review).

The most important change occurred when the States’ high courts, beginning with the Massachusetts state Supreme Court, began affirming cities’ ordinances requiring permits and fees for public assembly. This abridgment of peaceable assembly marks a significant change from the culture in the 18th and 19th century, where citizens actively used streets, squares and parks for spontaneous parades, festivities and gatherings that were both political and social. These events took place as part of elections and holidays and launched “the politics of the street into the mainstream of American politics.” (Simon Newman, Parades and the Politics of the Street: Festive Culture in the Early American Republic, 1997, p. 192)

The ability to hold these events spontaneously and in public, without restriction except that they not disturb the peace, was central to their legal, political and social value. While some events were related to elections and holidays, others were assemblies as part of a variety of political viewpoints that sought to be heard. The absence of permit requirements empowered a diversity of gatherings that allowed people to fluidly shift from an assembly to a march or parade. This gave tremendous voice and agency to non-elected individuals to communicate their beliefs to society and congress, serving as an important component of the system of checks and balances that is the hallmark of representative democracy in the United States. Thus, “[a] decision to strike, a meeting’s outcome, or a festive gathering could move quickly from an assembly into a marching line that conveyed a message to coworkers, neighbors, and the city at large.” (Susan G. Davies, Parades and Power, Street Theater in Nineteenth-Century Philadelphia, 1986, p. 33) . Reaching back into the forgotten beginning of peaceable assembly and what it meant, consider the voice of this gathering in Petersburg, Virginia:

“A 1786 gathering of citizens in Petersburg noted that ‘it is the indisputable right of Freemen to assemble at any time in a peaceable and orderly manner to discuss their public grievances, and if necessity shall require, to petition or remonstrate to their Rulers thereon.’” (Raymond C. Bailey, Popular Influence Upon Public Policy: Petitioning In Eighteenth-Century Virginia, p 23, 1979).

The question of safety and disturbing the peace during this time was handled by criminal law rather than civil law. Thus, an assembly had to have the likelihood of becoming a riot or it would have to actually become disorderly for it to be dispersed. The implementation of permits to control events is strident because it meant all assemblies were controlled before anything ever happened and even without indication that something might happen, rather than controlling only those assemblies that were proven to be disorderly.

On March 3, 1913, over 5,000 [women] suffragists paraded in Washington, D.C…. As the suffragists started down Pennsylvania Avenue, the crowd became abusive and started to close in, knocking the marchers around with hostility. With local police doing little to keep control, the cavalry was called in as 100 women were hospitalized. Many suffragists concluded that public protests might be the quickest route to universal franchise. (Wikipedia)

Head of March 3, 1913 suffrage parade, Washington, D.C.. Women suffragists marching on Pennsylvania Avenue; Capitol in background. George Grantham Bain Collection

On March 3, 1913, the day before Woodrow Wilson's inauguration, thousands of women paraded down Pennsylvania Avenue in Washington, D.C., demanding their right to vote. Underwood & Underwood/Library of Congress. (quoted from Smithsonian.com)

As a result of these public, collective gatherings, the 19th amendment to the U.S. Constitution was passed: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex.”

Another important change shifted the relation between assembly and the right of petition, which was of greater importance than the right of assembly until 1937 when in De Jonge v. Oregon the Supreme Court said, the right of assembly is:

[C]ognate to those of free speech and free press and is equally fundamental…. [It] is one that cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all civil and political institutions— principles which the Fourteenth Amendment embodies in the general terms of its due process clause…. The holding of meetings for peaceable political action cannot be proscribed. Those who assist in the conduct of such meetings cannot be branded as criminals on that score. The question . . . is not as to the auspices under which the meeting is held but as to its purposes; not as to the relation of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the Constitution protects. (De Jonge v. Oregon, 299 U.S. 353, 364, 365 (1937). See also Herndon v. Lowry, 301 U.S. 242 (1937).) (excerpted from Supreme Justia’s website on the right of assembly.)

Finally, and of extreme importance, the right of assembly in the early-mid 20th century began to be folded into free speech and the public forum doctrine (the public forum doctrine developed out of a series of Supreme Court rulings and became the standard for governing assembly and free speech). Although it has not been argued to the court, this change is critical and contentious because there is a fundamental difference between these two protections that has been forgotten: free speech is about individual expression while assembly and the right to petition are about collective discussion and action. The right to assemble and petition the government by citizens who are not elected officials was the standard of democracy in the United States in the 19th century; in terms of the United States, it served as an important, check and balance on representative democracy that citizens could directly enact. It also resulted in parades, festivities and public meetings on streets and in parks, which were a significant element of the culture of the United States at the time.

Today, the evolution of law and public space has created a surprising context for peaceable or public assembly in relation to the availability of public space. Pedestrian accessible traffic islands in U.S. cities are the only place you can freely gather at any time without a fee or permit, as long as you adhere to certain guidelines. In discussions with Munger, Tolles and Olson (MTO), which provided Islands of LA with pro-bono legal advice on the use of traffic islands as public space instrumental to Island Law and the guidelines, the question arose as to whether even a benign community gathering such as a picnic in public space could be construed as a type of participation in political life particularly if it was in reference to the use of a space in relation to the public forum doctrine and the right of assembly. It is unknown how the high court would rule on this perspective but, with this in mind, Islands of LA has explored the use of traffic islands for activities such as an evening picnic discussion and stroll or a sound game that intertwine a discussion of these spaces for assembly with social interaction and small festivities.

Islands of LA will continue to research this complex legal and cultural history and revise this essay accordingly. Below is a short list of articles and related content about the right to peaceable assembly. For a listing of case rulings related to peaceable assembly, visit Islands Law.

• The Neglected Right of Assembly by Tabitha Abu El-Haj.  Two version: two page summary and the full 47 page essay published in 2009 the UCLA Law Review (pdf) This article considers changes in both our understanding of the constitutional right of peaceable assembly and our regulatory practices with respect to public assemblies. It shows that through the late nineteenth century the state could only interfere with gatherings that actually disturbed the public peace, whereas today the state typically regulates all public assemblies, including those that are both peaceful and not inconvenient, before they occur, through permit requirements. Through this regulatory shift, and judicial approval of it, the substance of the right of peaceable assembly was narrowed. The history recounted in this Article is significant because it provides insight into the democratic and social practices the right was intended to protect-insight that cautions against collapsing the collective right of assembly into the individual right of free expression. ABSTRACT FROM AUTHOR.
• Right to Assemble by Lisa Bancuk provides an overview of the right to assemble and relates it to the philanthropy sector
• A Legal Analysis on the Rights of Assembly and Petition from FindLaw

A partial list from Wikipedia of Human Rights instruments where the concept of the right to peaceably assemble is protected includes:

• European Convention on Human Rights – Article 11
• International Covenant on Civil and Political Rights – Article 21
• India- Fundamental Rights in India
• Republic of Ireland – Guaranteed by Article 40.6.1 of the Constitution of Ireland
• Turkey
• Germany – Art. 8 GG
• Canada – S. 2 of the Canadian Charter of Rights and Freedoms which forms part of the Constitution Act, 1982
• France – article 431-1 of the Nouveau Code Pénal
• Hong Kong Basic Law Section 27